According to this San Diego Union-Tribune story dated today, Sgt Hutchins – whose murder conviction was reversed in United States v. Hutchins, No. 12-0408/MC (C.A.A.F. 2013) (CAAFlog case page), and whose retrial was last mentioned by Mike in this post – wants new detailed defense counsel based on the fact that the appellate military judge who disagreed with him at the NMCCA is now the Chief Defense Counsel of the Marine Corps
The potential conflict originates from public comments made in November 2009 by Navy Secretary Ray Mabus, comments that Hutchins unsuccessfully argued had tainted his appeals process. The judge who ruled against Hutchins on that issue on a Navy-Marine Corps Court of Criminal Appeals panel, Col. Joseph Perlak, is now chief defense counsel of the Marine Corps.
Hutchins asked that Navy Capt. Paul LeBlanc, who oversaw the reversal last year by the military’s highest appeals court of Hutchins’ convictions, serve as acting chief defense counsel for the retrial. He also requested a new military judge, telling Col. Michael Richardson “I object to you or anyone else who falls under the Secretary of the Navy being my military judge.”
Mabus, who is traveling overseas, has previously declined to comment on allegations by Hutchins of unlawful command influence.
Richardson declined to recuse himself from Wednesday’s hearing at Camp Pendleton and said he doubted there were grounds to disqualify him as judge for the court martial. But he granted the request to delay arraignment until Feb. 13, giving the Marine defense chain of command time to evaluate whether a conflict of interest exists and, if needed, assign new counsel.
“I’m not going to go further until we ensure there is an attorney sitting next to you fully capable of representing you,” Richardson said.
Capt. Eric Skoczenski told the military judge that he agreed with Hutchins that he should be removed as defense counsel, because of a “potential and inevitable conflict of interest” arising from his chain of command.
The government objected, with Marine Capt. Peter McNeilly saying “there is no conflict in our eyes. … The allegations against Col. Perlak we believe are spurious.”
The use of the hard word “spurious” threw me for a bit, as there is plenty of support for the motion for a new defense counsel (and the detailed counsel’s agreement that there is a conflict is likely dispositive). But the word appears to be in response to the following Defense claim (found on the second page of the article):
In a motion filed late Tuesday to suspend the proceedings until he could be assigned a “conflict-free judge advocate,” Hutchins signaled that his defense at court martial would include litigating the issue of possible unlawful command influence because of Mabus’ public comments. “One aspect of this litigation will include developing evidence that Col Perlak’s decision … was tainted by both actual and apparent unlawful command influence,” it says.
Though, that doesn’t actually provide any more support for the use of “spurious,” considering the independence of the CCA was challenged in Hutchins’ brief to CAAF (as discussed in my argument preview).
Thanks to reader M for the news tip.